Court Funding Task Force
October 14, 2003
Holiday Inn, SeaTac
Members present: Wayne Blair, chair; Jeff Amram, Cheryl Bleakney, John Cary, Edsonya Charles, David Donnan, Judge Stephen Dwyer, Joan Ferebee, Judge Deborah Fleck, Judge Gordon Godfrey, Judge Robert Harris, Ron Hjorth, Rena Hollis, Judge Stephen Holman, Kirk Johns, Senator Adam Kline, Representative Lois McMahan, Mary McQueen, Jan Michels, Retired Judge James Murphy, Michael Runyan, Judge Ann Schindler, Ron Ward, Judy Warnick, Judge Tom Warren, and Patty Willner
Guests present: Judge Richard Bathum, Diane Carlson, Mike Doubleday, Tammy Fellin, Judge Corinna Harn, Jim Pearman, Judge Wesley Saint Clair, Gail Stone, and Kevin Underwood
Staff present: Jude Cryderman, Wendy Ferrell, Doug Haake, Jeff Hall, Janet McLane, and Yvonne Pettus
Call to Order
Mr. Blair called the meeting to order.
Approval of September 5 Minutes
Minutes were approved with the addition of Senator Kline to members present.
Judicial Conference Presentation and Survey
Wayne Blair reviewed the results of the court funding judicial survey that was conducted during the Annual Judicial Conference in September.
Judge Godfrey spoke to the survey pointing out in the past judges have not supported state funding. He indicated the number of judges responding also was more than in the past.
Mr. Blair briefly reviewed the common principles. He reminded the members that the five work groups have been functioning since February. Mr. Blair asked for a representative from the Problem Definition, Funding Alternatives and Courts of Limited Jurisdiction Work Groups to work with Jeff Hall to edit the draft principles into a combined set of principles. Mr. Blair said he would like the new draft circulated to the Task Force in about two weeks so the principles can be put to a vote at the next Task Force meeting. Jan Michels, Ron Hjorth and Judge Schindler volunteered to assist in the editing of the principles.
Courts of Limited Jurisdiction
Mr. Blair described the procedure that will be followed for this discussion. First, we will discuss the principles, then the implementation concepts and finally options for court structure. Because options for court structure is on the table for the first time, Mr. Blair advised, the members will not vote on the options today.
Principles and Concepts
Mr. Blair explained that several areas of concern have been expressed. The cities do not like language in principles relating to revenue generation and collection. Another area of concern is that all judges including part-time judges will be elected. Also of concern is the civil subject matter jurisdiction in municipal courts.
Judge Schindler briefly described the background of the work group. She said the basis for their principles was what should a court of limited jurisdiction be? Through the formulation of the principles, the work group concluded that courts of limited jurisdiction are part of an equal and separate third branch of government. The courts of limited jurisdiction should offer services to the public at appropriate levels. Those services should be provided with little confusion to the public. Judge Schindler reminded the members that the Principles were presented at the September full task force meeting.
Principles for Courts of Limited Jurisdiction
Mr. Ward stated that the courts are meant to be a forum to dispense justice, not generate revenue.
Ms. Charles questioned the “not revenue generation and collection” provision of Principle IV.
Judge Dwyer responded there is factual basis for concern based on the figures provided last month showing there is a distinct difference in split between municipal and district courts. One way to discount the notion that the courts are operated to generate revenue would be to support Principle IV.
Ms. Carlson stated she supports the statement, but she doesn’t know of any city that looks to courts as revenue generators. She indicated the cities are supportive of the principles.
Judge Murphy feels it is important to educate the public about the purpose of the courts, indicating this is a public trust and confidence issue. He asked what is the proper function of the courts in the eyes of this task force?
Mr. Johns said he is puzzled about what is behind the various decisions made by the work group. He indicated he welcomes any explanation about views. He felt it would be helpful for the Task Force if the members knew more about the positions of the work group members.
Judge Holman responded one issue that was discussed was enforcement of sentences. In particular, what should the courts’ role be, not so much as revenue generating but enforcement of the sentence. Judge Holman indicated the county commissioners are also interested in the bottom line.
Representative McMahan said the purpose of court is to see that justice is done, not collecting money. She said it is appropriate to have that principle included.
Ms. Hollis stated that Principle IV should end after revenue generation. Courts must enforce their judgments, part of that is collection. She said that collection should be stricken.
Judge Schindler made a motion for the adoption of the principles for the courts of limited jurisdiction with the amendment to Principle IV which is the deletion of “and collection” with a period after “generation.” The motion was seconded and carried.
Concept 1-To promote public accountability and independence, all judges in courts of limited jurisdiction should be elected, including part-time judges.
Judge Schindler stated she believes if the courts of limited jurisdiction are a separate, equal and independent branch of government, the judges should be elected. She advised of the approximately 221 judges who serve on the courts of limited jurisdiction, 108 are municipal court judges. Of the 108 municipal court judges only 21 are elected. She continued that all of the district court judges, superior court and on up are elected.
Judge Schindler said in order to be able to establish public trust and confidence it is necessary to have an independent judiciary. Judges and their staff must have the ability to work independently. In addition, elected judges are accountable to the voters, not to those who pay and appoint.
Judge Schindler advised that municipal court judges working over 35 hours per week must be elected. She indicated that some cities add another appointed judge or court commissioner if the judges normal workload exceeds 35 hours per week to avoid the 35 hour limitation.
Mr. Ward stated there was no preconceived notion when the work of the work group first began. Mr. Ward said if there is one episode of over-reaching by the executive branch it is one too many. He noted this has happened and will happen again. Mr. Ward indicated many judges told him they have no problem with the concept of election of judges and independence of judiciary. Mr. Ward pointed out there is a potential problem each time the city administration changes. Mr. Ward said it is not possible for a mayor, city manager, or the city council to provide accountability to the voters for a judge that is a member of an independent branch of government. He continued there should be no real quarrel with the concept of election of judges and providing the accountability to the citizens of the state.
Judge Schindler said one concern is whether a small municipality would experience difficulty finding qualified individuals to run for judge. That concern could be resolved by allowing candidates to come from the district not just within the municipality. Judge Schindler pointed out that part-time elected officials such as mayors, and fire commissioners must stand for election. She said the election of part-time judges would not require any special election, as they would be elected at the same time as other courts of limited jurisdiction elections. She explained if a vacancy occurred the position would be filled by the appointing authority. In addition, court commissioners’ authority would be limited under the statute if municipal court judges were elected judges.
Ms. Carlson stated there is a clear difference of opinion regarding whether all judges should be elected. She indicated the work group did have extensive discussion about whether or not having an appointed judge compromised the independence or accountability of the judges. She said she does not perceive this as a current problem. She pointed out that many municipal courts have elected judges and requiring election of all municipal court judges is a huge step and it would be difficult to make that transition. Ms. Carlson believes they have found qualified judges that meet the principles. She expressed the willingness to work towards a compromise.
Ms. Fellin said she is polling jurisdictions to obtain number of hours judges work each week. She indicated some judges only work eight hours a month. She acknowledged that the judge must reside within the district, but not necessarily within city boundaries. Ms. Fellin said she doesn’t see judicial independence threatened by appointing judges. Ms. Fellin indicated the cities appreciate the efforts to have the judges elected at regularly scheduled elections, but the “hassle factor” of standing for election, campaigning, PDC requirements, filing fee and raising money in order to sit one day a month may deter many candidates. Many of these judges are not willing to go through an election because they see their time on the bench as community service. She said she has looked to the Commission on Judicial Conduct for information relating to admonishments of judges. Her initial information points to more admonishments for district/superior court judges than non-elected municipal court judges.
Ms. Charles said she feels all members are in agreement with the importance of the constitutional basis for the independence of the judiciary. She advised that only two jurisdictions with part-time judges are up against the 35-hour threshold.
Judge Bathum said he agrees with Ron Ward’s comment that one episode of the executive branch over-reaching is one too many times. He indicated that many know from KCDC experience that changes do not come without pain. This change needs to be made.
Mr. Haake responded to Ms. Fellin that there are three times as many district and superior judges as municipal court judges. He continued, that municipal court judges have four times as many complaints filed with the Commission on Judicial Conduct as do district court judges and three times as many complaints as do the superior court judges.
Ms. Hollis thinks the election process is important to ensure separation and independence of the judiciary. Ms. Hollis reported she had contacted cities in her county that had municipal courts. One of the municipal court judges does not live in the municipality and the other judge is a layperson. They both serve 4-8 hours a month. Ms. Hollis indicated she doesn’t think those municipalities would find someone willing to run for office.
Judge Fleck asked if the work group talked about the possibility of having district court judges ride circuit? In small municipalities did anyone inquire about conflict of interest issues involving a pro tem sitting in the court where they practice?
Senator Kline said he got the impression that there is good argument on part of small cities that electing part-time judges would be burden. He said perhaps criterion could be set according to population, hours court is in session, number of judges’ hours worked, including “homework” time. He indicated the members should recognize and carve out exceptions for small towns.
Judge McSeveney stated it is just as much of an inconvenience to elect a mayor or city council as elect judge. He asked how a city with only four hours of court per month can provide access to justice. If you want to be a municipal court judge in King County, you must be a lawyer in good standing. Judge McSeveney provided information relating to judges in Medina and Clyde Hill. He said there is an extensive amount of abuse in the appointment process for judges. Elected judges should only be accountable to the public.
Judge Harris advised of an Ethics Advisory Committee opinion which does not allow for part-time commissioners to appear before the bench on which they sit to represent clients in the same type of matters. He stated the opinion will have an impact on part-time judges, too.
Mr. Hjorth said although this is a fascinating conversation it doesn’t strike him as an issue of court funding. He asked how this issue is within mandate of the task force.
Mr. Blair responded that when the BJA originally created the task force, its focus was court funding, but structure of the courts of limited jurisdiction was later included because, if the structure were to be changed, that change can affect court funding.
Ms. McQueen said it is not clear if the requirement is 35 hours of compensable time in order to have an elected judge, what is compensable time? She said the trigger must be something that is reliable and provides for the ability of everyone to know when that happens.
Mr. Blair said it is important to keep in mind that cities have a number of implementation options in structuring a municipal court. Cities have options such as contracting with district courts for services rather than just stand alone municipal courts.
Ms. Hollis reminded the members that citizens running for mayor and city council do not have preset requirements as judges do. She indicated only a handful of people in small communities are practicing lawyers and they are for the most part contracting with city and PUD to do their legal services. She said her biggest concern that they will not have the resources available within the community to serve on the municipal courts.
Ms. Fellin advised on the poll she is conducting. In the poll, she did not ask how many compensable hours per week for a judge, but instead how many hours a week a judge works. She did indicate that one city appoints two part-time judges that total 40 hours a week. Ms. Fellin said she cannot justify cities trying to get around the statutory requirement, but said the cities fundamentally disagree.
Ms. McQueen questioned whether the information provided is information for judges or judges and commissioners. She asked how to tell from the poll how much time is incurred by a judge and how much by a commissioner.
Ms. Charles responded the information is still being compiled.
Judge McSeveney provided a brief history of the Kent Municipal Court which was established in 1994. He said last year Kent received another judge that replaced the full-time commissioner. He said the same input output models are used in Kirkland and they indicate Kirkland should have an elected judge, but Kirkland opts instead to bring in a commissioner on Fridays. Judge McSeveney stated all hours should be included, as they are all judiciary time.
Ms. McQueen said the issue is that compensable time is the only indicator that’s based on something other than workload.
It was moved by Judge Schindler and seconded to approve Concept number 1 as written.
Senator Kline said he reluctantly feels the need to oppose Concept 1. He feels there are two major issues: difficulty in some small towns finding an attorney to run and the other is the expense of the election, not only to the city but to the candidates. He continued, beyond the substance of the proposal, we also need to think about the political likelihood of getting the bill passed. In a practical matter there does have to be a distinction between large cities and small. Senator Kline advised that rural legislators will raise issues on behalf of the small cities.
Judge Godfrey said he supports what Judge Bathum said. Problem is issues of control and revenue, along with the issue of dispensing equal access of justice. He continued, if legitimate candidates are not available, then so be it, it is time for the municipal courts to move into district courts.
Representative McMahan said the decision should be made based on the principles. She advised by the time the 2004 legislative process is over there is ample time to consider political aspects.
Call for the question: 20 voted in favor of the motion and six opposed. Motion carries.
Mr. Johns made a motion to consider any exception to elected judges that might seem warranted if those exceptions are identified for discussion at a future meeting. Ms. Charles seconded the motion.
Mr. Johns said there is a need for the exceptions to be heard today. He is not convinced, but believes if people are asked to develop exceptions the members would be in a better position to proceed.
Mr. Ward said he thinks this motion might be appropriate for implementation strategies. Representative McMahan agreed with Mr. Ward, saying that this principle is fundamental in preserving the integrity of the system.
Senator Kline said he’s willing to abide by not having any exceptions, but there is a good chance that many legislators will not be happy with draft legislation. He advised there will be efforts from Association of Washington Cities to oppose.
Senator Kline said a likely exception could be tied into civil jurisdiction if done in a way that is mandatory. Language should not be “you may” but instead “you will.” A result of expanding jurisdiction that is mandatory may be that cities will be required to expand the hours that a judge is available. He suggested holding off until we have a better idea of what we will do if civil jurisdiction is expanded.
Ms. Charles said she agreed with Senator Kline’s suggestions. Open to hearing other information. Doesn’t see harm in hearing other informati0n.
Mr. Johns withdrew his motion.
Judge Schindler said the implementation strategies work group will work with co-chairs in implementing this concept through legislation. She said any additional information that should be included in the document forwarded to the implementation strategies work group can be sent to Judge Schindler and Ron Ward.
Concept 2-Title 3 should provide different court options for local governments to provide court services to their community.
Concept 4-A Court of limited jurisdiction should be accessible to residents of the community it serves. Each court of limited jurisdiction should provide services on a regularly scheduled basis at established hours that are posted for the public.
Concept 5-Costs for court services provided by another government should be calculated based on the amount of revenue used.
Concept 6-All statutory provisions relating to the structure, governance and operation of the courts of limited jurisdiction should be contained in Title 3.
Concept 3-Provisions should be made for expanded subject matter jurisdiction in municipal courts.
Judge Schindler explained the over-arching goals are for courts to advise residents what services are available and provide those services. Another goal is when cities make the decision to have a municipal court then they should ensure that court is a full service court.
Judge Dwyer asked what is the valid public principle that results in the situation where the counties are required to bear the cost of a civil justice system and the cities are not required to pay the same?
Judge Harn said it is an interesting comment that there is no way to figure out how to compensate county for the work done. She pointed out the same process used for criminal caseload could be used for civil caseload. She felt it is not impossible to structure process to fairly divide between cities and county. Judge Harn went on to say that full cost recovery can be implemented.
Ms. Fellin sees this as a customer service issue. She said the cities want courts to be accessible. Municipal courts handle high volume issues, but could consider expanding issues in some areas.
Judge Fleck asked if the cities are supporting Judge Harn’s suggestion of full civil cost recovery?
Ms. Fellin responded that she hasn’t had that discussion with the appropriate parties.
Judge Dwyer said no one disagrees with basic premise. Judge Dwyer pointed out that of the local revenues received, $41 million stays with the municipal courts, while $39 million is retained by the district courts. He asked why if cities keep more than counties, why are cities getting a pass? Based on the numbers, the counties should be getting a pass and cities should pay the entirety.
Ms. McQueen said the whole issue is driven by who is going to pay. First, there must be agreement on what courts should look like before the discussions regarding who is paying. How best can we resolve the cases? Do county, city and state all share in the cost? Focus should be what should a court look like.
Judge Harn said the group should look at how to fund the courts, while keeping economical. She pointed out all of the duplication is multiplying the costs of the courts. Judge Harn feels if each city comes up with money independently, the courts would cost much more and will push these cases into superior court.
Ms. Bleakney asked if the committee looked at making this particular provision option with full cost recovery if handled in district court. Different ways to have court services for the citizens. She continued expanded jurisdiction was raised by the city representative. City perspective wanted expanded jurisdiction/concurrent jurisdiction. Practical important steps must be taken. Should jurisdictions be expanded to more than what it is now? Yes. Should this be mandatory? Yes. If not, then it means nothing.
Judge Saint Clair said during the process it became apparent that law enforcement would like the courts to come forward with consolidated, regional process. If single court system in is place, the court would have the ability to address all issues outstanding with a particular person.
Judge Fleck moved for the adoption of Concept number 3 without the bullets. The motion was seconded.
A brief discussion continued regarding the work load and shifting of costs.
Judge Murphy moved to amend number 3 with the addition of “and district” following municipal. The motion was seconded.
Senator Kline said he supported motion for practical and political reasons. He reminded the members that the district court’s jurisdiction was expanded to $50,000 some years back and could stand a review by legislature now. He feels that some cases in $60-70,000 could be done in district courts, as long as the fee revenue and tax revenue were sufficient. If cities make the initial choice to establish a municipal court, there needs to be some way to equalize.
Call for the question. The motion carried.
Call for question on motion for adoption of Concept number 3 only, as amended, not including the bullets. Motion carried.
Options for Court Structure
Judge Schindler briefly reviewed the options for court structure. They will be discussed in depth at the November meeting.
Ms. Michels briefly described the Context of Trial Court Functions for Funding chart.
Ms. Michels moved for the adoption of the context of trial court function for funding discussion. Motion seconded and carried.
Report on Fiscal Year 2000 Trial Court Expenditures
Ms. Michels reported that not all counties report the same information in the same way. She said the information provided in the report is grouped by superior, district, municipal, juvenile courts and county clerks. She advised that the work group spent considerable time to come up with this report.
Ms. Michels moved for the adoption of the report on FY 2000. The motion was seconded.
Concepts for the Calculation of the Trial Court Funding Gap
Ms. Michels reported this document sets out concepts to be used for calculating the gap between actual funding and needed funding. She said the Year 2000 information was adjusted for current needs using the concepts. Ms. Michels said the work group will provide assumptions which will be discussed at the next meeting.
Representative McMahan asked if the work group looked at the effectiveness of programs.
Ms. Michels responded that the group did not look for effectiveness.
Ms. Hollis asked whether the survey dealing with position was provided to the county clerks.
Mr. Hall responded that leadership in the clerks association had advised to follow clerk/judicial ratio in making calculations.
A brief discussion followed regarding the effectiveness of some of the court programs.
Call for the question: The motion carried for the adoption of the Year 2000 report.
Ms. Michels said the concept for the calculation of the trial court funding gap is a high level document. She is not asking for approval of the assumptions but simply the concepts. She will bring scenarios to the next meeting.
Ms. Hollis indicated her concern about approving without a joint meeting of the Funding Alternatives and Problem Definition Work Groups.
Ms. Michels said she will work on recommendations for state/local split with Funding Alternatives Work Group.
Judge Harris suggested adding in findings from civil equal justice report and indigent defense report.
It was moved by Judge Murphy to adopt the concepts for the calculation of the trial court funding gap 1-5 without the bullets. The motion was seconded by Judge Fleck and carried.
Representative McMahan emphasized that she is still interested in recommendations of programs that the court oversees, but are not effective. Are the trial courts doing what they need to do or doing things they shouldn’t be doing?
Senator Kline stated that although not within group’s commission, a number of people might ask the same question as Representative McMahan but with different attitude. Many may see the courts as a department of the executive branch, not as separate branch of government. Likely to ask the question where can we cut, where can we save money. Senator Kline said it would be a lot more useful to be prepared to answer the question of ineffective programs and address those members of the legislature that may have an interest in that answer.
Ms. Hollis questioned using 2000 fiscal year information as a benchmark when practices are not uniformly applied across the state.
Representative McMahan said she is also concerned about unfunded mandates.
Ms. Michels stated at the next meeting or a future meeting, time should be allotted to speak to standard accounting for state and local government. She said that a standard way of accounting for certain court expenditures is essential.
Funding Alternatives Work Group
Mr. Johns advised that the October 2 meeting was devoted to user fees. He advised that the work group voted for various user options using paper ballots. Those members not present submitted votes by e-mail. He said the proposal was the result of work group discussions since the start of the work group effort relating to user fees. Mr. Johns briefly reviewed the ballot.
Mr. Johns pointed out that the principle most germane to discussion is principle 6, which is directly at the heart of discussion of user fees. He said that there is a misunderstanding that user fees are being proposed as a major source or only source of court funding. He continued, user fees would make a modest contribution to court funding, but are not seen as a major contributor. Mr. Johns
reviewed figures showing filing fees and user fees in general. He said the work group agrees that there is (a) serious funding crisis and (b) believe that courts should not rely on user fees to fund themselves.
Mr. Hall briefly recapped the results of the user fee voting.
Mr. Johns said he anticipates the work group will have a single report on the issue of user fees. He said the report will be easy to summarize including what was under consideration, what were the issues and results.
Mr. Hjorth said it is important to have all views reiterated in writing for inclusion in the report. He went on to say that many issues had heartfelt debate and would like to report to reflect all of those views.
Mr. Blair said based on the discussion he believed a consensus had been reached on the role of user fees to fund the courts. Filing fees can and should be increased from time to time. He also said the work group supports some new fees in areas of counter claims, cross claims, and third party claims, but user fees are not the solution to the funding problem.
Mr. Johns pointed out it was premature to take any action because the work group has not completed their work.
Mr. Blair asked for a very specific recommendation for the next task force meeting. He asked for user fee survey results to be written in a manner that is easily understandable. Mr. Blair also asked that the specific proposals include dollar amounts.
Judge Godfrey asked if access to justice is making requests for increase in filing fee and increase for juror pay, how do we fit in?
Mr. Blair asked if the clerks are part of filing fee increase.
Ms. Hollis responded the clerks are not sponsoring (but might support) a filing fee increase bill.
Mr. Hjorth said filing fees or court user fees have a place, but also the court system deserves to be funded by general government. He went on to say people who use the courts should be paying a fee to use them. Court user fees are not so much a response to a funding crisis, but people should expect to pay some fees to use the courts.
Judge Fleck reported the next meeting is scheduled for October 24. There is a meeting following this meeting to discuss agenda.
Ms. Bleakney said there is nothing to report.
Proposal that the next meeting be held on November 10. Location to be determined.
No further business, meeting was adjourned.
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